Learning Lessons of Donald Cook

A Look at U.S.-Russia Incident at Sea

Pavel Gudev is a Senior Research Fellow at the Primakov Institute of World Economy and International Relations (IMEMO). He holds a Doctorate in History.

Resume:
The Baltic Sea region is gradually becoming center stage in the clash of interests between Russia and NATO members. There is an obvious need for a document on mutual understanding between Russia and NATO to resolve dangerous incidents. The assessment of any actions of one party or another should be strictly legal.

The Baltic Sea region is gradually becoming center stage in the clash of interests between Russia and NATO members. There is an obvious need for a document on mutual understanding between Russia and NATO to resolve dangerous incidents. The assessment of any actions of one party or another should be strictly legal.

On April 11 and 12, 2016, the U.S. destroyer USS Donald Cook, armed with dozens of nuclear-capable Tomahawk cruise missiles with a range of up to 2,500 kilometers, was approximately 70 kilometers off the town of Baltiysk, Russia’s Kaliningrad Region. This circumstance attracted the attention of Russia’s Baltic Fleet Command. The fleet’s Su-24 warplanes and Ka-27 helicopter made several low passes over the destroyer in extremely close proximity to the ship. The incident provoked discussions on the legitimacy of these actions at a high diplomatic level.

U.S. Secretary of State John Kerry had to discuss this issue with the Russian foreign minister. He set forth his position in an interview with the media: “We condemn this kind of behavior. It is reckless. It is provocative. It is dangerous. And under the rules of engagement, that could have been a shoot-down. […] People need to understand that this is serious business and the United States is not going to be intimidated on the high seas. [...] We are communicating to the Russians how dangerous this is and our hope is that this will never be repeated.”

The incident raised the following questions:

Was the presence of a U.S. destroyer so close to the naval base of Russia’s Baltic Fleet legitimate?

Were the actions of the Russian pilots a provocation? Was it a simulated attack or did they pursue absolutely different goals?

What international documents and agreements regulate this kind of conduct? And did either party violate international agreements in this case?

IS THE PRESENCE OF FOREIGN WARSHIPS IN THE BALTIC SEA LEGITIMATE?

Firstly, the presence of a U.S. or any other warship in the Baltic Sea is absolutely legitimate.

Unlike the legal regime of the Black Sea straits (the Montreux Convention), the regime of passage from the North Atlantic into the Baltic Sea through the straits of Sound and the Great and Little Belts, although regulated by special conventions (the Treaty of Copenhagen and the Copenhagen Convention of 1857), does not provide for any restrictions regarding the time of stay for ships from non-Baltic countries, their class and tonnage. The only exception is the requirement, codified in the national legislation of Sweden and Denmark as strait countries, that warships should notify them about plans to pass the straits at least three days in advance or, in certain cases, they should ask for permission to do that.

The United States disputes these restrictions and believes that the passage of warships and military aircraft through the Sound and both Belt Straits is based on the right of transit passage, which it qualifies as a customary law, or on “the right of free and unimpeded navigation,” as the right of transit passage is more limited than “freedom of navigation” guaranteed by the conventions of 1857. The U.S. argues that the aforementioned conventions have never applied to military vessels, and, therefore, Denmark and Sweden cannot modify them by developing their national legislation. Washington insists that the right of transit passage should be immune to interference from coastal countries.

One must suppose that this position fully coincides with the interests of Russia which views unimpeded passage for its ships out of the Baltic Sea and into the North Atlantic as a priority of its naval policy.

SECURITY OF EXCLUSIVE ECONOMIC ZONES

The location of the USS Donald Cook 70 kilometers from Baltiysk indicates that it was within Russia’s exclusive economic zone (EEZ) but beyond the 12-mile limit of the country’s territorial sea, to which its full state sovereignty extends, as well as to the airspace above it.

The United Nations Convention on the Law of the Sea of 1982 provides that “in the exclusive economic zone, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil” (Article 56).

Other states also have rights in EEZs. Article 58 (1) of the Convention says: “In the exclusive economic zone, all States, whether coastal or land-locked, enjoy […] the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.”

Therefore, of the six freedoms of the high seas, described in Article 87, three have no relation to the development of natural resources and are applicable to EEZs. These are the freedom of navigation, the freedom of overflight and the freedom to lay cables and pipelines. Forms of implementing freedoms of the high seas that are applicable to EEZs (in particular, the freedoms of navigation and overflight) should not be different from the forms of their implementation in the high seas. The freedoms of navigation and overflight should be equally applicable to both civilian and military ships and aircraft. So, the freedom of military navigation within the EEZ of a coastal state is not limited in any way by the 1982 Convention.

The U.S. has an explicit position on the possibility of engaging in naval activities within an EEZ: “All States enjoy high seas freedoms of navigation and overflight and all other internationally lawful uses of the sea related to these freedoms, including, inter alia, military activities, such as anchoring, launching and landing of aircraft and other military devices, […] intelligence collection [italics is mine—P.G.], surveillance and reconnaissance activities, exercises, operations, and conducting military surveys.”

The U.S. argues that the provision of the Convention’s Article 58 that “In exercising their rights […] in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State” does not give coastal states any additional powers that could restrict military activities of the United States in EEZs of other countries.

Not all states agree with this interpretation. Some of them believe that the Convention’s phrase “for peaceful purposes,” applicable in respect of the high seas (Article 88), and EEZ (Article 58/2), is a legal justification for a ban on military activities that are not related to ensuring the right to free navigation, such as intelligence collection. For example, the Chinese government has banned the collection of intelligence within its EEZ, because this information could be used in an armed conflict. Therefore, this type of activity would cause direct damage to the country’s national security.

On the one hand, coastal states do not have any competence in ensuring their own security in an EEZ within the framework of the 1982 Convention, which follows from the very name of the term—“economic zone.” On the other hand, the present broad interpretation of “security” implies that this notion includes resource, food, environmental and other kinds of security. This is why countries have begun to view ways to ensure them as economically determined. For example, Beijing argues that the use of sonars by foreign warships has a negative impact on marine mammals and fish resources in China’s EEZ and that, therefore, it is detrimental to the country’s economic interests. The environmental imperative—the need to protect the marine environment and its biodiversity—is increasingly often used as a ground for restricting or banning military activity, although this is contrary to the 1982 Convention.

A more balanced point of view may be that naval activity in an EEZ is inadmissible only if it interferes with the implementation of legitimate rights of a coastal state regarding the exploitation and development of EEZ resources, navigation or protection of the marine environment. If there are fishing vessels in an EEZ or some structures have been built there, naval activity in the zone should take into account risks to human life or possible damage to these structures. In addition, special attention should be paid to situations where a coastal state has established a “clearly defined area” in its EEZ in accordance with Article 211 (6a) for the prevention of pollution from vessels or a marine protected area within the 200-mile EEZ. In order to ensure safety of life and protect and preserve the marine environment, states planning to engage in any kind of naval activity should, at least, hold consultations with coastal countries on this issue.

So, the presence of a U.S. warship in Russia’s EEZ, its reconnaissance activity, and the take-off and landing of a Polish helicopter may be irritating to Moscow and the Russian Navy Command but it fully meets the provisions of international maritime law. Furthermore, Russia, as a party to the United Nations Convention on the Law of the Sea of 1982, has incorporated the Convention’s provisions relating to the freedom of navigation and overflight in the EEZ into its national legislation. Systematic violations of these provisions of the 1982 Convention may lead other countries to consider themselves not obliged to comply with them with respect to Russia in accordance with Article 60 of the Vienna Convention on the Law of Treaties of 1969 “Termination or suspension of the operation of a treaty as a consequence of its breach.”

Russia, as a maritime power with interests in various parts of the world ocean and seeking to restore its oceanic fleet capable of accomplishing tasks in all waters, is interested in unified approaches to interpretations and implementation of provisions of the 1982 Convention. This is why unimpeded realization of the right to free navigation and overflight in the high seas and EEZs is as important to the Russian Navy as it is to the U.S. Navy.

SIMULATED ATTACK OR ROUTINE PRACTICE?

Commenting on the incident with the USS Donald Cook in the international waters of the Baltic Sea, the U.S. European Command said in a statement that the U.S. destroyer “encountered multiple, aggressive flight maneuvers by Russian aircraft that were performed within close proximity of the ship.” Due to the incident, on April 11, the ship’s commander had to suspend deck landing drills with an allied military helicopter as he judged the actions by the Su-24s “unsafe.” On April 12, a Russian Ka-27 helicopter circled the Donald Cook at low altitude several times. The U.S. European Command described its actions as “unsafe and unprofessional.” Later, Russian Su-24 planes made eleven close-range and low-altitude passes by the U.S. ship, flying in “simulated attack profile,” while ignoring repeated safety advisories issued by the destroyer in both English and Russian, the Command said.

It was the phrase “simulated attack profile” that led U.S. diplomats to say that the Russian planes could have been shot down by the ship commander’s order. However, there are several fundamental circumstances that directly or indirectly show that Washington exaggerated things.

Firstly, the practice of overflying foreign warships and escorting them in the air and at sea has been a traditional kind of interaction between the Aerospace Forces/Air Force and Navy of Russia/Soviet Union and those of the United States since the Cold War years. It allows the military to demonstrate the operational readiness of naval aviation and plays an important role in training combat crews. Moreover, key tasks of this kind of escort include not “simulated attacks” but intelligence gathering, as well as testing some kinds of equipment. In any case, in a simulated attack, unless it involves a head-on attack, there is no sense in approaching a ship so closely.

The only thing that remains unclear is what variants of the Su-24 were involved in the incident: Su-24M (frontline bomber) or Su-24MR (tactical reconnaissance aircraft which does not have offensive weapons). Both variants are in service with the Baltic Fleet. But even these details are not very important due to the reasons given below.

Secondly, the flight of the Russian aircraft in close proximity to the U.S. warship undoubtedly allowed American sailors, who were watching the planes, to see what weapons the Su-24s had and whether these weapons included antiship missiles. Judging by photos, the planes carried only two external fuel tanks and no bombs or missiles, let alone air-to-surface missiles. In point of fact, using these missiles does not require approaching a target so closely, which significantly discredits the U.S. statements.

Thirdly, the videos made public by the U.S. show that there was no alert on the ship and that the ship’s crew were not taking combat positions. The sailors were on the top deck, unperturbedly watching the planes for a long time. Their reaction proves that the ship’s commander did not take the Russian pilots’ actions seriously, although later things were presented the other way round.

Fourthly, the Su-24 is a military aircraft with a variable-sweep wing (from 16 to 69 degrees), which allows it to reach transonic and supersonic speeds. The photos and videos of the incident show that the Russian planes were flying with straight wings, which demonstrates that the aircraft were not flying at full speed. Experts estimated their speed at 800 to 900 km/h, whereas the maximum wing sweep allows such aircraft to reach a speed of 1,300-1,400 km/h. Therefore, these facts also indirectly indicate that the Russian planes flew rather carefully near the U.S. destroyer.

Fifthly, we do not know all the circumstances behind such actions by the Baltic Fleet. Was its reaction caused by the U.S. destroyer’s approach to Russia’s coast or was it a “strong warning” in response to some other activity by the U.S./NATO in the Baltic Sea or under water? It can be assumed that the reaction of the Baltic Fleet Command would have been much calmer if it had been informed about the U.S. destroyer’s activity and its nature near a Russian naval base in advance.

Finally, there is no evidence that the Russian Su-24 planes flew not only along the U.S. destroyer but also across it. In that case, they could really have hit the ship’s masts. Indeed, a similar incident took place at the height of the Cold War: in 1968, a Tu-16 plane buzzed the USS Essex and crashed into the sea. The incident caused Russia and the United States to conclude the Agreement on the Prevention of Incidents On and Over the High Seas, which was signed on May 25, 1972 in Moscow and which is still in force. The latest consultations within its framework were held in the summer of 2015 after a two-year interval.

Article IV of the 1972 Agreement says: “Commanders of aircraft of the Parties shall use the greatest caution and prudence in approaching aircraft and ships of the other Party operating on and over the high seas, in particular, ships engaged in launching or landing aircraft, and in the interest of mutual safety shall not permit: simulated attacks by the simulated use of weapons against aircraft and ships, or performance of various aerobatics over ships, or dropping various objects near them in such a manner as to be hazardous to ships or to constitute a hazard to navigation.”

The U.S. interpretation of the Agreement’s provisions provides that “aircraft should maintain a safe distance from Russian ships and aircraft, and especially from ships conducting air operations so as not to present a hazard.” In addition, “when operating in the proximity of Russian ships or aircraft, commanding officers and aircraft commanders shall, to the maximum degree possible, use the appropriate signals […] to indicate maneuvering intentions to Russian commanding officers. […] Communication between military aircraft or between ships and military aircraft of the sides will utilize radio communication procedures.”

Based on the above, the Russian aircraft’s actions can really be considered violating, at least, the spirit of the bilateral agreement.

Firstly, the flight of the Russian planes in such close proximity did present a hazard to the U.S. ship and its crew. The professionalism of the Russian pilots aside, there is always a probability of error or equipment failure.

Secondly, the maneuvers of the Russian aircraft resulted in the suspension of flights by the Polish helicopter which must have been engaging in reconnaissance/antisubmarine activity, because it was not safe to continue these flights in the presence of the Russian aircraft.

Thirdly, the U.S. party insists that the Russian pilots did not respond to radio messages on safety frequencies.

All these factors caused a strong reaction from the United States, which, however, was hardly adequate to the violations of the 1972 Agreement by the Russian party.

As a rule, discussions of such incidents are held at the naval attaché level, and exchanges of information between the parties are in no way an expression of a diplomatic protest. In this case, the escalation of this issue to a high diplomatic level is evidence of a highly politicized nature of this problem.

The U.S. accusations that the Russian jets conducted a “simulated attack” are groundless, and the Secretary of State’s statement about a possibility of using weapons to prevent such incidents looks like serious speculation. Russia and the United States are not in a state of war, and the use of weapons by an American ship could be automatically qualified as an attack on a Russian military aircraft.

Moreover, even in case of emergency such situations should be resolved peacefully. Even the U.S.-Soviet Agreement on the Prevention of Dangerous Military Activities, concluded in 1989 and aimed at preventing military incidents caused by an unintentional entry into the national territory of another country (although it is not applicable to this situation), says that “the Parties shall take measures to ensure expeditious termination and resolution by peaceful means, without resort to the threat or use of force, of any incident which may arise as a result of dangerous military activities.”

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The incident with the Donald Cook, as well as a series of other incidents that have taken place over the last two years since the beginning of the Ukrainian crisis, is further evidence that foreign reactions to fairly routine events are often unnecessarily alarmist. Unfortunately, the Baltic Sea region is gradually becoming center stage in the clash of interests between Russia and NATO members, including the United States. Washington will not drop demonstrative charges designed to show support for its allies, especially those who are traditionally inclined to view Russia only as a threat. If NATO builds up its military-technical potential near Russia’s borders, including U.S. military presence, even though on a rotational basis, Moscow will inevitably take countermeasures. Provocative statements about the need to revise the non-aligned status of Sweden and Finland will not help to de-escalate tensions in the region, either.

The situation is complicated by the fact that Russia/USSR has bilateral agreements aimed at preventing incidents at sea, such as the Soviet-U.S. agreement of 1972, with only ten NATO members. These include the United Kingdom (1986), Germany (1988), France (1989), Italy (1989), Norway (1989), Spain (1990), the Netherlands (1990), Canada (1991), Greece, and Portugal. The majority of NATO members, including the Baltic States, do not have agreements on the prevention of incidents at sea with Russia, which is a source of concern, of course. There is an obvious need for this kind of document on mutual understanding between Russia and NATO to resolve dangerous incidents. After all, the assessment of any actions of one party or another should be strictly legal. Today, Russia’s foreign “partners” often see its military activity as fully illegitimate, which is not only untrue but is also an obvious political provocation.